Court File and Parties
Newmarket Court File No.: FC-18-55707-00 Date: 2018-12-19 Superior Court of Justice - Ontario
Re: Gehan Aly Hussein, Applicant And: Amr Wassef El-Awny, Respondent
Before: The Honourable Mr. Justice D.A. Jarvis
Counsel: K. Wilmot, agent for Counsel for the Applicant, N. Husien J. Stanleigh, Counsel for the Respondent
Heard: November 14, 2018
Ruling on Motion
Background
1The respondent (“the husband”) moves for an Order varying my Order made July 12, 2018 to have his Canadian Passport returned to him together with other travel documents issued by Egypt and Saudi Arabia. In the alternative, he asks for a declaration that he has complied with my Order by serving 90 days incarceration for non-payment of a support Order (“the support Order”) made by Sutherland J. on March 12, 2018.
2Paragraphs 4 and 5 of the support Order provided as follows:
The Respondent/Father shall pay child support for Salma El-Awny born May 15th, 1990, Abdel Rahman El-Awny born February 2nd, 1995 and Yousef El-Awny born October 24th, 2000 in the amount of $4,158 per month based on an imputed annual income of $250,000 CDN.
The Respondent/Father shall pay: the mortgage on the matrimonial home, home insurance, all phones of the children, tuition, book and expenses for college for Salma El-Awny and Abdel El-Awny; car insurance for the family vehicle (Mercedes); life insurance premiums of both the Applicant/Mother, Gehan Aly-Hussein and the Respondent/Father, Amr Wassef El-Awny; medical expenses of the children and the Applicant/Mother; and the costs of prescriptions/drugs for the children including asthma medication for Yousef El-Awny.
3The facts and circumstances giving rise to my Order are set out in Hussein v. El-Awny, 2018 ONSC 4302 and will not be repeated here. Suffice it that the husband chose to disregard the payment terms of the Order made by Sutherland J. and the Director sought, and was granted, a Warrant for the Arrest of the husband which was executed on or about July 7, 2018.
4The husband was born in Egypt and is a naturalized Canadian citizen. He works in Saudi Arabia and earns a substantial income. Apart from his interest in the parties’ jointly-owned matrimonial home, which Nelson J. awarded to the applicant (“the wife”) on June 22, 2018, the husband has no exigible assets of any value in Canada. The wife claims, and the husband disputes, that he owns properties in Egypt worth in excess of $17,000,000 CDN and that his net worth exceeds $28,000,000 CDN. The husband has claimed that these properties are owned by the parties’ children or that his purchase of them is “in limbo”.
5When I dealt with this matter on July 12th, the husband owed $21,206.66 support (this amount included the $4,158 support due and payable that day) pursuant to paragraph 4 of the support Order. The Director sought payment of that amount and that the husband be required to post security between $250,000 and $500,000. The wife had also brought a motion for, among other things, an Order for spousal support, for $1,000,000 security and that the husband surrender his passport. Although the husband told the court then that he had $30,000 available to pay the support arrears, nothing was paid to the Director until August 30, 2018.
6On or about July 13, 2018 the husband’s former lawyer deposited with the court the husband’s Canadian passport, his identification card issued by the Kingdom of Saudi Arabia and his Egyptian national ID card.
7On August 23, 2018 the husband brought a motion for several heads of relief the most relevant of which (to this Ruling) requested his release from jail, the immediate return of his passport, and to vary the support Order. The husband claimed that he was financially unable to comply with the security term imposed by my July 12th Order. Douglas J. was not persuaded that the husband’s evidence met the test for material change as set out in s. 41(15) of the Family Responsibility and Support Arrears Enforcement Act, 1996. Douglas J. granted the husband leave to file responding pleadings and to provide disclosure to the wife and the Director. The husband’s motion was adjourned to September 14, 2018.
8At a further Default Hearing on September 12, 2018 Douglas J. expressed concern about the absence of evidence from the husband dealing with his efforts to comply with the security (or bond) component of my July 12th Order.
9On September 14, 2018, Douglas J. dismissed the husband’s motion stating, among other things, that the husband had failed to establish a material change and that he could not sit in appeal of my July 12th Order. Douglas J. also observed that while the husband maintained that compliance with the bond term was impossible, the husband did not submit that he could not comply with the support Order. By that date, the husband had failed to pay the support due on August 12 and September 12, 2018. That default continues. The husband claimed (and the wife disputed) that his employment at the company in which he was a partner had been terminated.
10On September 26, 2018 Douglas J. ordered that a Case Conference be scheduled. That conference date is January 15, 2019.
11Shortly before October 18, 2018 the husband was released from jail after serving 90 days incarceration and promptly brought the motion now before the court.
The Issue
12Paragraphs 2 and 3 of my July 12th Order are relevant to the relief now sought by the husband:
The husband shall file with the court his Canadian Passport by July 13, 2018 (4:30pm). In addition, the husband shall file with the court any Egyptian national ID documents and valid Egyptian Passport. This requirement extends to any similar travel or identification documents permitting travel issued by France or Saudi Arabia. If the husband has none of these documents, he must file with the court an affidavit to that effect by Monday, July 16, 2018 (4:30pm). The passport and any other travel documents (if applicable) shall not be released to the husband until he fully complies with paragraph 3 of this Order.
A final Order shall issue in the default proceedings committing the husband to a period of incarceration not exceeding 90 days or until he complies with the terms of paragraph 4 of the support Order by paying to the Director the sum of $21,206.06 and paragraph 5 of the support Order (if a Statement of Arrears is filed), whichever is sooner, and also provides security in the amount of a $1,000,000 bond in a form satisfactory to the court. Any amount paid by the husband to the Director in excess of $21,206.06 shall be applied to the Director to the support Order as and when future payments under that Order become due. (bolding added)
13The husband, aided by two of the parties’ three children, all of whom reside with their mother, filed several affidavits in support of the relief claimed. This evidence includes allegations that:
(a) the parties separated at the beginning of 2008;
(b) the husband continued to support the wife and children after the parties separated. The wife began to display increased enmity toward the husband after she learned that he had entered into a new marital relationship with another woman in Saudi Arabia;
(c) the only home that the husband owned in Egypt or anywhere else was a residence in the Alexandria, Egypt suburbs purchased in 2004 and which is estimated to be currently worth about $70,000 CDN. He also was paying for an apartment under construction along the north coast of Egypt for which he had deposited $20,000 CDN and which he hoped to have fully paid by 2021 when construction was expected to be completed;
(d) after the parties separated in 2008 the husband bought a house for the parties’ son, Youssef, for $110,000 CDN which is estimated to be currently worth about $220,000 CDN. Youssef was eight years old in 2008;
(e) the father gifted properties to the parties’ children;
(f) the husband purchased and gifted apartments in Alexandria to the parties’ daughter, Salma, and their oldest son, Abdel, in 2016. Salma said in her affidavit sworn on July 19, 2018 that her father had recently asked her that she send him “the appropriate ID so that he could purchase for me another Apartment” (para. 17) and that as far as she knew “all of the Egyptian properties my father purchased are in the childrens (sic) name” (para.18). Abdel’s affidavit, also sworn on July 19, 2018, confirmed that his father had purchased an apartment for him (para. 28) and that as far as he knew his father did “not have any Egyptian properties in his name and all but one of the properties was purchased in the last few years” (para. 29). In his affidavit sworn on August 7, 2018 Abdel said that “I know of the properties my father gifted to me and I took title to them in my own name and not in trust for my father” (para. 7). Abdel was 21 years old in 2016 and was a student;
(g) in response to the wife’s claim that the husband owned seventeen properties in Egypt, the husband said in his July 24, 2018 affidavit that they were purchased after the parties separated in 2008 but had “not been registered because there is a legal dispute between the Government and the previous owners” and that, as a result, his “purchase of those lands is in limbo” (para. 32);
(h) the father said that he was unable to post a $1,000,000 bond as security because “[s]uch bonds are only available for business people who are doing import/export business”. In his affidavit sworn October 18, 2018 that husband repeated his assertion that it was impossible for him to get a “bond in Saudi Arabia or Egypt for anything but commercial purposes in those countries” (para. 4). He did not have sufficient assets in either of those countries to qualify and, even then, he “could only get a bond for export purposes or commercial purposes within the boundaries” of those countries (para. 5).
14The wife claimed, and the children denied, that they were being “manipulated” by their father because they were (as was she) financially dependent on him. There is merit to her claim. The information for many of the statements contained in the supporting affidavits of the oldest two children dealing with their parent’s financial relationship during their marriage and their father’s financial affairs could only have come from him and are, for the most part, argumentative and hearsay. What is patently clear is that the children know very little about what their father has done, is doing, or what he has told third parties and the court in these proceedings about his net worth. Or that they are complicit in his effort to mislead the court. For example:
(a) in a Mortgage Application dated April 17, 2014 and signed by the husband for the purchase of the residence in which the wife and children currently live and which was purchased in the joint names of the parties (111 Royal Palm Drive, Vaughan, Ontario), the husband and wife are identified as “Married”. Both parties are also identified as having previously resided at a Toronto address for seven months and, before then, at an address in Richmond Hill for five years, five months;
(b) in the Personal Financial Statement forming part of the mortgage application, the husband’s employment status is noted (a Partner in the same company with whom he was associated when he was arrested). In a part of that Statement “Schedule 1-Real Estate Owned” there are several properties noted, all showing title in the husband’s name, the date and cost of their purchase and their 2014 value. These comprise a house on Alex(andria?) [2] Beach (purchased in 2008, costing $1,800,000 and currently worth $3,000,000); a Villa in Alex(andria?) Abu Yo (purchased in 2004 for $1,000,000 and currently worth $5,000,000); two properties described as “4000 M2 land” (purchased in 2007 for $650,000 and $550,000, respectively, and currently worth $4,000,000 and $3,800,000, respectively); two apartments purchased in 1987 for $100,000 and currently worth $1,000,000): and, Comm(ercial?) shops (purchased in 1994 for $60,000 and worth $800,000). The total value of these properties was estimated by the husband to be $17,600,000 CDN;
(c) nowhere in any of his pleadings in this proceeding does the husband challenge either his authorship of the mortgage application or the veracity of the financial information contained in it;
(d) in his affidavit sworn July 24, 2018 the husband acknowledged that the matrimonial home was purchased with “a mortgage from Canada Trust and a loan from Saudi Arabia and MBNA Banks” (para. 91; italics added);
(e) in his financial statement sworn on September 21, 2018 in this proceeding the husband discloses four properties owned by him in Alexandria, Egypt, two of which are farmland and two are condominiums. No value is attributed to the farmland properties for the husband’s March 2008 valuation date. The condominiums are each valued at $10,000. The aggregate current value recorded for all four properties is $82,000 CDN. According to his 2014 mortgage application, however, the husband owned at least seven properties as identified in (b) above, having a value (as he represented) of $17,600,000;
(f) in her Application, the wife recorded under “Family History” that the parties separated in June 2016. In his Answer signed and dated on September 21, 2018 the husband confirmed that the wife’s family history “is correct”. Elsewhere in Schedule “A” attached to the Answer, the husband referred to two affidavits sworn by him on July 24 and August 9, 2018. The earlier affidavit stated that the parties separated in 2008 but continued to share the matrimonial home.
Disposition
15I don’t believe the husband. His evidence is riddled with inconsistencies. Either he misrepresented to the lending institution his financial circumstances in 2014 or he has repeatedly lied to this court about his net worth. The evidence is also clear that the husband has purchased, and probably owns, properties in Egypt some of which he has “gifted” to his children, one of whom (as already noted) was eight years old in 2008 and all of whom were living, and continue to live, with their mother in Canada pursuing their studies.
16There is no credible explanation from the husband how in 2014 his net worth was $17,600,000 (at least) and two years later less than $200,000.
17There is no credible evidence whatsoever that the husband is unable to post security as ordered.
18The sole object of the husband’s motion is, in my view, the return of his passport and other travel documents after which I have no doubt that he will leave this jurisdiction never to return. The wife’s support and equalization rights would be irreparably prejudiced in that event. The husband is over five months in arrears of his support payments and, according to the wife, he has not been compliant with paragraph 5 of the support Order of with respect to payment of various housing and related expenses for the wife and children.
19The husband’s motion is dismissed.
20When the case conference proceeds the husband should be prepared to explain to the conference judge the extraordinary inconsistencies between his representations to the mortgagee of the matrimonial home and to this court. His financial statement is woefully inadequate and, in my view, materially misleading.
21If the parties are unable to agree upon costs the following is ordered:
(a) the wife shall deliver her costs submissions by December 31, 2018;
(b) the husband shall deliver his response to the wife’s submissions by January 18, 2019;
(c) reply, if any, by the wife to be delivered by January 25, 2019.
22Costs submissions shall be limited to no more than five double-spaced pages for [21] (a) and (b) above and, in the case of reply, to two double-spaced pages. All submissions shall be filed in the Continuing Record and counsel shall advise the judicial secretary by email at Meghan.Billings@ontario.ca. Bills of Costs, Offers to Settle and any case law upon which a party may wish to rely shall be filed by the above deadlines but not form part of the Continuing Record.
Justice David A. Jarvis Date: December 19, 2018
Footnotes
2The Statement only provides abbreviated descriptions of the property identified. The fuller references in brackets followed by a “?” are inferred.